HKSAR v Odira Sharon Lensa
Court of Appeal
Criminal Appeal No. 56 of 2016
Lunn V-P and McWalters JA
22 September 2016

Discount and mitigation – drug trafficking – post-sentence events – recognition should be given to prisoner for participation in campaign to warn Africans about dangers of drug trafficking in Hong Kong – matter better determined by the executive than by the Court of Appeal

In May 2013, D arrived in Hong Kong on a flight from Nairobi. When questioned, she said that she had objects inside her body that needed to be discharged immediately. She discharged a total of 96 packets of dangerous drugs consisting of 0.56 kg of heroin hydrochloride. In November 2013, she pleaded guilty to unlawfully trafficking in those dangerous drugs, and was in January 2016 sentenced by the Court of First Instance to 13 years’ imprisonment. In February 2016, D applied for leave to appeal against sentence out of time. She filed no grounds of appeal against sentence, but complained in a letter to the Court of Appeal dated 21 August 2016 that the purity of the heroin hydrochloride in which she trafficked had been overlooked when a starting point of 18½ years’ imprisonment had been adopted and an enhancement of 1 year’s imprisonment had been ordered. D also said that there were fellow inmates who had trafficked in the same or even greater quantities of dangerous drugs, but who had received sentences lower than hers. She attached to her letter a letter from Fr John Wotherspoon OMI, CSD Chaplain No. 51 in which he described a campaign which he had launched in 2013 to warn East Africans about the dangers of drug trafficking in Hong Kong. He also described the contribution which D and her family had made to that campaign, she having joined the campaign in early 2015.

Held, dismissing the application, that:

  • D not having advanced a satisfactory explanation to excuse the very lengthy 2-year delay in applying for leave to appeal against her sentence, there was no justification for granting her the extension which she sought.
  • In any event, there was nothing in her complaints against her sentence.
  • The Court did, exceptionally, have regard to post-sentence events and the most commonly encountered exception was that of assistance to the law enforcement and prosecuting authorities. But that was an exception which existed for very particular public policy reasons. And there would be cases where a court would be moved to take action in an appellant’s favour by reason of post-sentence events because a failure to do so, by that court and at that stage, would defeat the ends of justice and the public interest.
  • But that was not the position with regard to participation in a campaign such as Fr Wotherspoon’s campaign.
  • It was apparent from Fr Wotherspoon’s testimony that the participant of an inmate in his campaign might vary from inmate to inmate. Some might be more involved than others and for many the involvement might be a lengthy ongoing one where the inmates’ relatives were enlisted to carry forward the campaign in the inmate’s home country. At the sentencing stage, this might require evidence to be called and an enquiry to be conducted by the sentencing judge in order properly to assess the involvement of the prisoner and the value of that involvement to Hong Kong. Assessing the value to Hong Kong of the prisoner’s actions within the framework of Fr Wotherspoon’s campaign was a task for which the executive would generally be better equipped than the Court of Appeal to perform.
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